LIFENG CHEN et al., Plaintiffs, v. NEW TREND APPAREL, INC. et al., Defendants. Hana Financial, Inc., Intervenor Plaintiff, v. New Trend Apparel, Inc. et al., Third–Party Defendants No. 11 Civ. 324(GBD)(MHD) October 02, 2012 Dolinger, Michael H., United States Magistrate Judge MEMORANDUM & ORDER *1 Intervenor defendants Nina Chang and New York Clothing Group, Inc. (“NYCG”) have moved to compel an inspection of a computer and production of documents from defendants New Trend Apparel and Byunglim Louie. The motion is granted in part and denied in part. We will not rehearse once again the tangled history of this case. It suffices to note the following: The movants were added to the case as parties in February 2012, although they were initially targeted by a freeze order in late 2011. They have pursued discovery since their inclusion in the lawsuit, and now, in the waning phase of discovery, seek additional disclosures from two original defendants. The movants ask for two items. First, they assert that Ms. Byunglim Louie, a principal of New Trend, often used her computer for business purposes, and that she uploaded to her computer a series of recordings of conversations between her and Ms. Chang that have already played a key role in an application by the intervenor plaintiff to freeze the assets of Ms. Chang and NYCG. (Kornfeld Aff. ¶¶ 23, 36–40). Premised on these two apparently undisputed facts, they ask that Ms. Louie be required, in effect, to hand over that computer to counsel for the movants so that he may inspect it and its contents, notwithstanding (1) the fact that it assertedly contains a substantial quantity of material that is entirely irrelevant to this lawsuit as well as privileged materials, (2) that the movants have long ago been given copies of the audio recordings of the conversations, and (3) that movants do not make a case for the implication that they have not already been given all of the relevant other documents on CDs that were made available to all litigants earlier in the case. (See Weissman Decl. ¶¶ 2–6, 9–10; Louie Decl. ¶¶ 2–5). Second, the movants ask that Ms. Louie produce to their attorney a set of bankers boxes located in her apartment that contain New Trend documents (Kornfeld Aff. ¶¶ 47–49 & Ex. D), notwithstanding the representation by counsel for Ms. Louie and New Trend that the movants have previously been given the CDs that contain these documents, as have all other parties to the lawsuit. (See Weissman Decl. ¶ 9; Louie Decl. ¶¶ 8–9). The request for an inspection of the computer is denied. Such inspections by an adversary—even by a forensic expert, which movants do not suggest they have engaged—are granted only under limited circumstances, when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials despite demand for them in the course of the lawsuit or when the possession or use of the computer is an element of the parties' claims or defenses. See, e.g., Piccone v. Town of Webster, 2010 WL 3516581, *8 (W.D.N.Y. Sept. 3, 2010); Calvon v. Mizuho Secs. USA, Inc., 2007 WL 1468889, at *3–5 (S.D.N.Y. May 18, 2007); Treppel v. Biovail Corp., 249 F.R.D. 111, 123–24 (S.D.N.Y.2008). Cf. Genworth v. Fin. Wealth Mgt., Inc., 267 F.R.D. 443, 448–49 (D.Conn.2010) (ordering forensic search by court-appointed expert); De Espana v. American Bureau of Shipping, 2007 WL 1686327, at *9 (S.D.N.Y. June 6, 2007) (plaintiff ordered to search own computer). This limitation reflects the fact that production of a computer to the adversary almost invariably will lead to disclosure of quantities of documents that are entirely irrelevant or privileged, and, even if not privileged, possibly quite sensitive. See generally Genworth, 267 F.R.D. at 446–47 (quoting Ameriwood Inds., Inc. v. Liberman, 2006 WL 3825291, at *3, 6 (Dec. 27, 2006), amended, 2007 WL 685623 (E.D.Mo. Feb. 23, 2007)). *2 Movants make no showing to justify their desire to rummage through Ms. Louie's computer; indeed, they do not attempt to do so and simply rest on the mistaken contention that such inspections are routinely permitted. Moreover, to the extent that they focus their request largely on the fact that Ms. Louie uploaded the audio recordings to her computer, they plainly misfire, since the same recordings were long ago made available to the movants, and indeed movants used those recordings to prepare a transcript that they claimed was an accurate representation of what was said in the recorded conversations. (See Report & Recommendation dated April 20, 2012 at 24–25, 36–38). There was never a suggestion then, or even now, that Ms. Louie in some way altered the recordings, and hence the fact that they were uploaded onto her computer does not justify any search of the computer, if that is what the movants propose.[1] As for the movants' request for New Trend hard-copy documents, Ms. Louie and New Trend represent that they have produced all such documents in the form of CDs that were provided to all counsel in the case. (Weissman Decl. ¶¶ 9–10; Louie Decl. ¶¶ 8–9). The movants do not specifically challenge that assertion, but seem concerned, albeit without specifying a factual basis, that some of the documents in the so-called bankers boxes may not have been included on the CDs. (See Kornfeld Aff. ¶ 48). To allay these concerns, the movants are certainly entitled to review all hard-copy New Trend documents. Although Ms. Louie has offered the documents for inspection at her apartment in Ridgefield, New Jersey, the burden of sending them to her attorney in New York is not onerous. If movants' counsel wishes to inspect the bankers boxes, they are to be made available for that purpose in the offices of counsel for New Trend and Ms. Louie. CONCLUSION For the reasons stated, the motion to compel of intervenor defendants Nina Chang and NYCG is granted only to the extent of authorizing them to inspect the documents found in the New Trend bankers boxes at the office of counsel for New Trend and Ms. Louie. This is to be done by no later than October 17, 2012. Footnotes [1] It is possible that movants are confusing a forensic search of a computer—to be carried out at the behest of a discovering party—with so-called e-discovery, which is conducted by the discovered party pursuant to a plan that is either agreed to by the litigants or ordered by the court. Fed.R.Civ.P. 26(b)(2)(B), 26(f)(3)(C). See, e.g., Barrera v. Broughton, 2010 WL 3926070, at *2–3 (D.Conn. Sept. 30, 2010); Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006). There has been no request by any party to this lawsuit for the court to approve such a plan, and there is no indication that any of the litigants have failed to provide responsive e-mails or other documents from any of their computers. That is not a subject of the current motion, and we therefore decline to address it here.